DiGiacinto v. RB Health LLC

Background

Joseph DiGiacinto brought a putative class action against RB Health (US) LLC concerning alleged false, misleading, and deceptive marketing practices involving the labeling of Children’s Delsym Cough Relief. RB Health moved under Federal Rule of Civil Procedure 12(c) for judgment on the pleadings. That motion asks whether, assuming the pleaded facts are true, the moving party is entitled to judgment based on the pleadings.

RB Health relied on two arguments. First, it asserted that the Food, Drug, and Cosmetic Act expressly preempted DiGiacinto’s state-law claims because the Food and Drug Administration had approved labels for the children’s product and an adults’ product. Second, it argued that DiGiacinto was asserting “deceptive by implication” claims that California law does not recognize.

Judicial Notice and Preemption

RB Health asked the court to take judicial notice of documents concerning the products’ applications and labeling before the Food and Drug Administration. Judicial notice allows a court to accept certain facts without formal proof when they are not reasonably disputable. The court found that RB Health did not clearly identify which facts it wanted the court to notice from each exhibit. The court also noted disputes about the documents’ completeness, meaning, and relevance, including an exhibit that did not include the labeling RB Health claimed had been approved.

The court further found that RB Health improperly submitted additional judicial-notice materials with its reply and later submitted another request more than five weeks after the reply without court permission or a showing of good cause. Because of these problems and the parties’ disputes, the court declined to take judicial notice of any of the submitted documents.

The court concluded that the preemption issue was better suited to a motion for summary judgment, which would allow consideration of a complete record concerning the products’ packaging history and any Food and Drug Administration approvals. The court therefore denied that portion of the motion without prejudice to RB Health raising preemption in a summary-judgment motion.

Deceptive-by-Implication Argument

RB Health argued that the word “Children’s,” a cartoon image of a child, and the statement “Ages 4+” could not support a claim because the label did not refer to the adults’ product. It relied on a California decision involving a truthful “No Sugar Added” statement that allegedly implied competing products contained added sugar or that the labeled product was superior.

The court distinguished that decision. It said DiGiacinto alleged a more direct inference: that the children-specific labeling caused consumers to believe the product was specially formulated for children even though it was not. The court stated that this inference did not depend on competing products and was a smaller inferential step than the one at issue in the California decision. It also emphasized that whether advertising is likely to deceive a reasonable consumer generally raises factual questions and is resolved on the pleadings only in rare situations.

The court concluded that the amended complaint adequately alleged that RB Health’s labeling had the capacity, likelihood, or tendency to deceive or confuse the public. It denied the motion for judgment on the pleadings as to RB Health’s argument that the claims were not actionable as “deceptive by implication” claims.

Other Dispositions

The parties’ administrative motions to seal were denied as moot because the court did not rely on the sealed materials. The court also denied the parties’ joint discovery letter concerning whether discovery should be stayed while the motion for judgment on the pleadings was pending.

Result

The motion for judgment on the pleadings was denied. The preemption issue was denied without prejudice to being raised in a summary-judgment motion; the deceptive-by-implication argument was denied. The sealing motions were denied as moot, and the joint discovery letter was denied.